Did Justice Thomas Really Dissent on This Decision?

Before we go on, it's important to remember that Justice Clarence Thomas was appointed to the Supreme Court to replace Justice Thurgood Marshall, the legal titan who first brought down separate-but-equal and who drove a stake through the heart of Plessy v. Ferguson. Keep that in mind as we go on through the news that the Supreme Court Monday, by a 7-1 vote, Mr. Justice Thomas dissenting, ordered that a man named Timothy Foster, currently residing on death row in Georgia, be given a new trial, as explained by Jess Bravin of The Wall Street Journal.

Advertisement - Continue Reading Below

Timothy Foster was sentenced to death by an all-white jury after his conviction for the 1986 murder of Queen Madge White, a 79-year-old widow in Rome, Ga. Prosecutors used their peremptory challenges, which allow removing a juror without expressing a reason, to exclude all blacks in the jury pool. Mr. Foster's attorneys objected under a Supreme Court decision handed down earlier in 1986, Batson v. Kentucky, which found it unconstitutional to strike jurors based on race. Georgia courts at the time rejected those claims. Decades later, Mr. Foster obtained the prosecution's internal notes by filing a request under a Georgia open records law. The notes disclosed that prosecutors had marked the name of each black person in the jury pool with the letter B, and highlighted each name in green, amid other evidence showing the state's effort to keep African-Americans off the jury. The all-white jury sentenced Mr. Foster, who was 18 at the time of the murder, to death after prosecutors urged it to "deter other people out there in the projects."

In other words, this was so nakedly About Race, although nothing ever is About Race, and the prosecutorial misconduct so egregious, that it revolted even Chief Justice John Roberts, the man who never misses a chance to declare the Day Of Jubilee.

"The focus on race in the prosecution's file plainly demonstrates a concerted effort to keep black prospective jurors off the jury," Chief Justice John Roberts wrote for the court's majority. "Two peremptory strikes on the basis of race are two more than the Constitution allows."

The sound of the scales dropping from the Chief's eyes is deafening. After all, when he gutted the Voting Rights Act in Shelby County, Roberts expressed amazement at how close Dr. King's dream was to its fulfillment. From ThinkProgress:

Advertisement - Continue Reading Below

"There are examples of progress, more poignant than the numbers…During the Freedom Summer of 1964 in Philadelphia, Mississippi, three men were murdered while working in the area to register African-American voters. On Bloody Sunday in Selma, Alabama in 1965, police beat and used tear gas on hundreds marching in support of enfranchising African-Americans. Today, both Philadelphia and Mississippi and Selma, Alabama have African-Americans mayors….Our country has changed."

'Ees a puzzlement, surely.

As we mentioned, the only dissent in Monday's case came from Justice Clarence Thomas—and did we mention that he replaced Thurgood Marshall?—who has had enough of this meddling by the federal government into the inalienable rights of local prosecutors in Bugtussle to wear their kangaroo suits on the job. Again, via ThinkProgress:

"The Court today invites state prisoners to go searching for new 'evidence' by demanding the files of the prosecutors who long ago convicted them . ...I cannot go along with that 'sort of sandbagging of state courts."

Remember that the defense here didn't go fishing for whether an assistant DA was shtupping the help, or whether a prosecutor was taking a free trip to some felon's fishing camp. The defense contended that the prosecutors had deliberately and unconstitutionally struck black jurors from Foster's trial. They went looking for evidence of that…and…they…found…it.

What the hell Justice Thomas's problem with that is, I wouldn't begin to guess, because it would require me to go spelunking through the psychology of someone who once wrote in another dissent that an inmate who was severely beaten in a Louisiana prison had no recourse, and in another that an Alabama prison could fasten a prisoner to a "hitching post" in the summer sun. (One of Thomas's clerks at the time was an ambitious young lawyer named John Yoo.)

This is the man who replaced Thurgood Marshall, giving history a scar that it never will lose.